A Conversation with Dick Durbin

Senator Dick Durbin of Illinois has served as Senate Democratic whip since 2005 and is ranking member of the Senate Judiciary Committee's Subcommittee on Immigration and the Appropriations Committee's Subcommittee on Defense. He was first elected to the Senate in 1996 and previously served in the House of Representatives for 13 years. An experienced trial lawyer, he has become well known for his intensive questioning of witnesses and judicial nominees before the Judiciary Committee. This interview was conducted by Stephen Rohde by email.

Stephen Rohde: President Trump swore that he would “faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.” Has he violated his oath?

Dick Durbin: No president in our nation’s history has been more disdainful of our Constitution than President Trump. He has attacked decisions made by federal judges; he has usurped Congress’s power of the purse by taking funds from the military to build his “big and beautiful” border wall; he has ignored explicit constitutional requirements, such as those in the Emoluments Clause; he has undermined journalists and their First Amendment protections; and the list goes on and on. Whether ignorance or malevolence is to blame for this president’s disregard for our nation’s founding document, the next president will have much damage to repair.

President Trump has declared that “I have a no-conflict situation because I'm president.” Two federal district judges have rejected his motions to dismiss lawsuits alleging that he has flagrantly violated the Foreign Emoluments Clause, one of which was filed by approximately 200 members of the U.S. Senate and House of Representatives. Edmund Randolph at the Virginia Ratifying Convention in 1788 remarked that the Emoluments Clause protected the country against the danger of “the President receiving Emoluments from foreign powers” and asserted that a president who violates the clause “may be impeached.” Is the president's violation of the Emoluments Clause an impeachable offense?

The requirements of the Foreign Emoluments Clause are clear from the Constitution's text and original understanding. Many conservatives who claim to be bound by the Constitution's text and the framers' original intent have nonetheless been silent about the president's serial violations of the Emoluments Clause. The litigation over the president's repeated violations of the Emoluments Clause, including a lawsuit brought by 200 members of Congress in which I am one of the plaintiffs, will likely be an interesting test of whether the justices in the conservative Supreme Court majority are just fair-weather textualists and originalists.

The Mueller report documented at least ten instances in which President Trump obstructed justice. Do those findings justify the House commencing impeachment proceedings?

The investigation by the House Judiciary Committee should continue, and I believe President Trump has crossed the line on obstruction both before and after the Mueller report was released. Yet I know there is no realistic way to gather 67 Senate votes to convict him on articles of impeachment. On our best day, with the most outrageous conduct by the president, only a handful of Republican senators have had the courage to publicly dissent. In the face of the Republican Party's blind obsequence to Donald Trump, pursuing justice through an election is the best recourse.

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Is the fact that the Republican-controlled Senate Intelligence Committee subpoenaed Donald Trump Jr. a sign that monolithic support for the president is breaking down? Can you envision circumstances under which any of your Republican Senate colleagues break ranks and vote to convict Trump in a Senate impeachment trial?

Instances of Republican resistance to this president's nascent authoritarianism are rare and typically short-lived. Republicans like Barry Goldwater and Hugh Scott stood up to President Nixon, and stood for the rule of law during Watergate, but the Republican Party today is not what it used to be. I do not believe today's Republican leaders are prepared to stand up to President Trump's abuses.

If Trump continues defying congressional subpoenas, basically stonewalling Congress, where else might he be vulnerable to investigation and possible prosecution for corrupt activities? Can a state AG indict a sitting president for criminal activities that may have occurred before he took office?

The Supreme Court has not directly addressed this question.

What lessons should we have learned from the Nixon impeachment proceeding?

Nixon resigned after seminal decisions by the federal courts and after members of his own party made clear that his conduct was unacceptable. But when the leaders of this president's party are determined to shield him from accountability no matter how abusive his conduct, we may face a crisis of confidence in our institutions and our constitutional structure. I do not think the founders expected American politicians to place party purity over country and Constitution.

Are you optimistic or pessimistic that the federal courts will eventually hold that Trump is not above the law and can't hide his wrongdoing behind executive privilege?

Justices of the Supreme Court will likely have to rule on whether the president is above the law and thus immune from scrutiny and accountability. It should be an easy decision, but President Trump seems confident that a majority of the Supreme Court is in his corner.

Michael Cohen famously said that if President Trump loses the 2020 election, he would not allow a peaceful transition to occur. Nancy Pelosi has said that Democrats need to win in 2020 well beyond the margin of electoral theft. What concerns do you have about 2020, and what might we do to head off the worst?

I do not believe that the Cohen election nullification theory is credible, but for the sake of our democratic future I hope that the winning margin is decisive and that Donald Trump will be a private citizen in 2021.

How will the country and the Constitution survive the Trump presidency?

Americans have faced and overcome greater challenges than Donald Trump. In the face of the refusal of Republicans in Congress to serve as a check and balance on this president, we will need the pillars of American democracy—including an independent judiciary, a free press, and the opportunity for Americans to vote in free and fair elections—to sustain our nation through the Trump era and to rebuild when he is gone from the political scene.

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